March 16, 2012

The Justice Department is urging a federal appeals court in Washington to strike down a ruling that said former Defense Secretary Donald Rumsfeld can be held personally liable for the alleged torture of an American contractor detained in military custody in Iraq.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit will hear the case, Doe v. Rumsfeld, on Monday morning. DOJ lawyers said in court papers that the suit impermissibly intrudes on foreign detention policy and conduct in a combat zone.

The government wants the appeals court panel to overturn a ruling from U.S. District Judge James Gwin, who said last August that the suit can proceeding in Washington's federal trial court. Gwin rejected the government's effort to dismiss the litigation.

DOJ Civil Division attorney Henry Whitaker, who will argue for Rumsfeld, said in a brief that Congress has not crated a damages action for detainees who allege they were injured or abused in military custody.

Congress, the department’s legal team said, crafted an administrative claims process that caps any award at $100,000. The plaintiff, identified in court papers as John Doe, was a civilian contractor and Army veteran who provided Arabic translation services to U.S. marines.

“The question here is not whether provision of a damages action, in this context, is good policy,” Whitaker said. “Rather, it is who should decide those policy issues.”

Whitaker said the suit, filed in 2008, would cause the federal courts to evaluate detention policy—from the creation and implementation of the policy to whether “any of those actions up and down the chain of command violated the Constitution.”

DOJ contends the case doesn’t hinge on the contractor’s U.S. citizenship but instead on separation of powers concerns that the government says should prohibit the court from allowing the suit to move forward.

The allegations, Whitaker said, “implicate critical military sensitivities”—detention and interrogation policy in a combat zone.

Whitaker also said the contractor’s complaint fails to establish a link between the general detainee policies Rumsfeld created for use at the Guantanamo Bay facility and the specific mistreatment the plaintiff alleged he endured in military detention in Iraq.

An attorney for the contractor, Michael Kanovitz of Chicago’s Loevy & Loevy, said in
court papers that his client was “a loyal American citizen who served his country courageously and honorably” in Iraq. Beginning in November 2005, U.S. officials detained the man for nine months in a military prison in Iraq.

Kanovitz said the plaintiff, whose name has been kept confidential to protect his safety, was interrogated and tortured. The suit contends that Rumsfeld was aware that unlawful conduct was taking place in Iraq.

“As a result of Defendant’s actions, a loyal American citizen (one of tens of thousands of civilian contractors working in Iraq), who was guilty of no crime, came to be tortured using the precise techniques that Congress had prohibited,” Kanovitz said in court papers.

He continued, arguing that “It should come as no surprise that a citizen so abused would come to his country’s courts seeking recompense against the person who caused the abuses to occur.”

Debra Katz of Washington’s Katz, Marshall & Banks said in a friend-of-the-court brief on behalf of the nonprofit whistleblower advocate Project On Government Oversight. Katz urged the appeals court to uphold the trial judge’s ruling.

“Without the ability to turn to the courts, U.S. citizens would lose their individual rights because their ability to enjoy the guarantees of the Constitution would depend entirely on the whim of the officials whom the Constitution constrains,” Katz said in a brief filed in Febtruary. “That fundamental fact is as true in a war zone as anywhere else.

The federal judiciary, Katz said, has “been equally clear that the judicial branch can—and indeed must—review the constitutionality of military actions when individual rigths are at stake.”

Katz said the Justice Department wants the D.C. Circuit to adopt a “radical expansion” of the law that would completely foreclose the ability of judges to review any constitutional claim based on actions in a war zone.

“This proposed rule extends much too far,” she said. “It would put all actions of any military official beyond the scope of judicial review with implications that range far beyond any reasonable level of deference to military operations.”